The Supreme Court of Canada is scheduled to rule Friday on the fate of mothers who abandon the body of an infant in the belief it was stillborn.
The case raises thorny issues about when an infant in its mother’s womb legally becomes “a child.”
The defendant in the case, Ivana Levkovic, abandoned the corpse of her newborn outside an apartment in Mississauga in 2006.
The corpse, wrapped in blankets and placed inside a plastic bag, was later discovered by the apartment superintendent.
Ms. Levkovic was charged with infanticide, a Criminal Code provision which dictates that an individual cannot conceal the birth of a “child,” whether it died “before, during or after birth.”
At trial, Ms. Levkovic claimed that the baby had been born dead after she accidentally fell, precipitating labour.
She was acquitted, partly because the provision is vaguely worded and partly because the decomposition of the fetus had prevented forensic investigators from establishing whether the infant was dead before birth.
However, the Ontario Court of Appeal ordered a new trial on the basis that the infanticide section is not unconstitutionally vague.
In arguments before the Supreme Court, lawyers for Ms. Levkovic reiterated that the vagueness of the law violates the Charter right to security of the person. They maintained that it leaves women unable to discern whether they are committing an illegal act if they dispose of a miscarriage.
However, the Ontario Crown countered that individuals cannot simply dispose of a body without notifying the state and allowing officials an opportunity to examine the circumstances of its demise.
While the outcome could potentially change the definition of when a fetus becomes a human being, the Supreme Court has traditionally steered a wide berth around any decision that could significantly affect the abortion debate.